Why President Obama shouldn't give up on the Liu nomination

May 24, 2011 11:07 AM

Whooping cranes are endangered, but there are still more of them than there are federal judges of Asian American descent, of which there are just fourteen.

Asian Americans, 17 million strong and five percent of the U.S. population, aren't merely woefully under-represented in the federal judiciary, we are virtually invisible. We may be the majority of all judges on TV police dramas, but when it comes to real federal judges and magistrates in the land, Asian Americans are at less than 2 percent.

That's hardly a speck of dust on the glass ceiling.

No one's talking quotas here. That would be illegal. But given the numbers, on moral and ethical grounds, is there any reason why the Senate should continue to block the nomination of such a highly qualified legal mind as UC Berkeley Boalt Hall law professor Goodwin Liu to the Ninth Circuit Court of Appeals?

There had been hope that Liu would be treated fairly and given the respect he deserves as an impeccably qualified candidate for the appellate court, with support from prominent voices from both the left and the right. (With endorsements from the likes of edgy conservatives like anti-affirmative action activist Clint Bolick, you'd think Liu was an enlightened Bush nominee).

It had to be encouraging to see the week begin with former ACLU attorney Ed Chen finally earning Senate approval to become a district judge in Northern California, bringing the number of Asian American federal judges to fourteen. If the Senate were to confirm Liu as well, that would make it one heck of an Asian Pacific American Heritage Month.

Alas, the Senate went the way of Solomon and cut the Asian American offering in half. Chen got the love and right-wing restraint, while Liu got the nasty right-wing venom, the type you normally see in a Supreme Court justice fight. Needing 60 votes to end a filibuster, Liu fell 8 votes shy.

If you've followed the hearings throughout the nearly two year process for both Chen and Liu, you know what a frustrating journey it's been. Last March, when I blogged about Liu's appearance before the Senate subcommittee (GOP's cover wearing thin on its distaste for Goodwin), it was agonizingly clear that the GOP had fundamentally misunderstood everything about Liu's positions, and were just fine with it.

In one exchange, Rep. Charles Grassley totally misread Liu's idea that we have a "living Constitution" that evolves over time. Liu doesn't see the constitution as so easily changeable, and even politely corrected Grassley. But the truth seemed to have no effect on the senator or his colleagues.

Indeed at the hearing, Senate Minority Leader Mitch McConnell (R-KY) called Liu a "left-wing ideologue who views the role of a judge not as that of an impartial arbiter, but as someone who views the bench as a position of power."

Where did he get that? Not from Liu's stance on affirmative action or same-sex marriage, which only shows a respect for justice and fairness. Radical ideas? Hardly. Pretty mainstream these days. Even more relevant than his writings is Liu's stated belief that as an appellate judge he would rule on precedent established by the court.

But Liu's real problem was his outspoken stands against the Supreme Court nominations of current justices Roberts and Alito.

Edward Whelan, the president of the conservative Ethics and Public Policy Center, who is so much further right than Liu is left, made it his calling to lead the assault on Liu, especially for criticism of Alito. Said Whelan to the Wall Street Journal: "There's a price to pay for his own misconduct."

Since when is stating an opinion as a law professor considered "misconduct"? There's nothing to suggest that in a judge's role, Liu would act with anything but the utmost professionalism.

But it's enough for right-wing ideologues to lord it over Liu and to use it to set the parameters for any future nominees President Obama sends up for the highest court in the land. What kind of person might that be? Certainly no one with a hint of progressive values.

Judging from the president's actions the last two years on other matters, I'm not sure if the GOP has to worry too much about that.

But the president could show some courage here by not giving up on the nomination and continuing the fight for Liu. It's not without precedent, though it may not work. But in the interest of fairness, it's the only way to move forward.

Bush certainly was allowed to stack the courts with his preferences. The Obama administration, with its priority for greater ethnic and racial diversity in the federal judiciary, deserves to have its best choices for the nation confirmed. Isn't that the prerogative of the presidency?

Meanwhile, think of the message to all those who hold on to the notion they can get ahead in this world on the basis of merit, talent and hard work.

When the Senate allowed the filibuster of Liu, the son of Asian immigrants, who was a Rhodes Scholar and the elite of the elite, it sent a sobering message not just to Asian Americans but to all good Americans.